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Volume 27, Issue 7 — July 1997


TMDLs: The Resurrection of Water Quality Standards-Based Regulation Under the Clean Water Act

by Oliver A. Houck

Editors' Summary: The Clean Water Act (CWA) has rediscovered water quality standards. More accurately, environmentalists have discovered this oldest of pollution control strategies lying dormant in the Act and have litigated it into motion. How this strategy now succeeds will have a profound impact on the future of the Act and its long march toward restoration of the nation's waters. This Article reviews the nature of water quality standards-based regulation. It also explores the evolution of CWA § 303 and the positions that states, industry, and other stakeholders have taken on this method of regulation.


The Alternative Compliance Model: A Bridge to the Future of Environmental Management

by Timothy J. Mohin

One of the most popular recent trends in the environmental arena is reinvention. The groups recommending changes to our system of environmental management are notable by their breadth, their high level of credibility, and the consistency of their message.1 Yet, despite the consistent message, it seems "the system" is resistant to change, with the entrenched interests it supports being the first to defend the status quo despite the downsides for the environment and management efficiencies.

This Dialogue explores one of the most consistent recommendations from the various reinvention initiatives—that of "alternative compliance" or, more appropriately given its breadth of application, "alternative path environmental management." Specifically, this Dialogue will examine the issue from two perspectives: first, from the perspective of a company that has volunteered and successfully completed the Clinton Administration initiative known as Project XL; and second, from the broader perspective of the ongoing debate over this issue and what it could mean for reinventing our environmental management systems.

A Shorter, Simpler Approach to Superfund Reauthorization

by Charles Openchowski

Since its creation in 1980, the Superfund program has overcome a number of obstacles. It survived embarrassing political scandals in its first few years. It endured a failure to reauthorize the underlying statute1 in 1985, a lapse that led to widespread disruptions at the U.S. Environmental Protection Agency (EPA) and set the program back significantly. It has persevered in the face of attacks from many sides. Some have complained that the remedies selected are unnecessarily expensive, while others have claimed that cleanups are inadequate to protect nearby communities and natural resources. Some have complained that the liability scheme is too draconian and unfair, while others have accused the Agency of handing out sweetheart deals. And the program has continued to address contaminated sites, despite the failure of recent attempts to reauthorize and revise the statute.

In 1990, Congress passed a four-year, straight-line extension of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) without any real discussion. Two major legislative accomplishments—the Clean Air Act amendments and the Oil Pollution Act—dominated the environmental agenda that year and left no appetite to take on complicated, highly charged issues raised by the multibillion dollar federal cleanup effort. There was no desire to engage in a bruising fight like the first reauthorization process that eventually resulted in the Superfund Amendments and Reauthorization Act of 1986 (SARA), or to risk derailing the program for a second time. The debate was postponed.